R v Dee

• Jurisdiction: Ireland
• Judgment Date: 01 December 1884
• Court: Court of Criminal Appeal
• Date: 01 December 1884

Cr. Cas. Res.

Before MAY, C.J., PALLES, C.B., LAWSON, O'BRIEN, ANDREWS, and MURPHY, JJ.

THE QUEEN

and

DEE

R. v. JacksonENR Russ. & Ry. 487.

R. v. SaundersENR 8 C. & P. 265.

R. v. Williams Ibid. 286.

R. v. StauntonENR 1 Car, & K. 415.

R. v. CamplinENR 1 Den. C. C. 89.

R. v. Ryan 2 Cox, C. C. 115.

R. v. CaseENR 1 Den. C. C. 580.

R. v. ClarkeENR Dears. C. C. 397; 24 L. J. Mag. Cas. 25.

R. v. Richard Fletcher 8 Cox, C. C. 131; Bell.C.C. 63.

R. v. Charles Fletcher L. R. I C. C. R. 39.

R. v. Barrow Ibid. 156.

R. v. FlatteryELR 2 Q. B. Div.410.

R. v. Young 14 Cox, C. C. 114.

R. v. Camplin 1 Den. C. C. xvii

Surtees v. EllisonENR 9 B. & C. 750.

R. v. Allen L. R. I C. C. R. 364.

R. v. FanningUNK 17 Ir. C. L. R. 289.

R. v. Young 14 Cox, C. C. 114.

R. v. JacksonENR Russ. & Ry. 487.

R. v. CamplinENR 1 Car, & Kir. 746.

R. v. Richard FletcherENR Bell, C. C. 63.

R. v. BarrowELR L. R. 1 C. C. R. 156.

R. v. FlatteryELR 2 Q. B. Div.410.

R. v. Maddleton 42 L. J. Mag. Cas. 84.

R. v. Fletcher 8 Cox, C. C. 131.

R. v. SaundersENR 8 C. & P. 265.

R. v. ClarkeENR 1 Dears. C. C. 397.

R. v. FlatteryELR 2 Q. B. Div.410.

R. v. BarrowELR L. R. 1 C. C. 156.

R. v. Young 14 Cox, C. C. 114.

R. v. CamplinENR 1 Den. C. C. 89.

R. v. Rayan 2 Cox, C. C. 115.

R. v. Fletcher Bell.C. C. 63.

R. v. Barrow L. R. I C. C. R. 156.

R. v. Williams Ibid. 286.

R. v. CaseENR 1 Den. C. C. 580.

R. v. ClarkeENR Dears.397.

R. v. BarrowELR L. R. 1 C. C. R. 156.

R. v. Fletcher 8 Cox, C. C. 131.

R. v. SaundersENR 8 C. & P. 265.

R. V. Williams Ibid. 286.

R. v. CaseENR 1 Den. C. C. 580.

R. v. LockELR L. R. 2 C. C. R. 10.

R. v. FlatteryELR 2 Q. B. Div.410.

R. v. BarrowELR L. R. 1 C. C. R. 156.

R. v. ClarkeENR Dears. C. C. 397.

R. v. CaseENR 1 Den. C. C. 580.

R. v. Fletcher Bell.C.C. 63.

R. v. Young 14 Cox, C. C. 114.

R. v. FlatteryELR 2 Q. B. Div.410.

R. v. Young 14 Cox, C. C. 114.

R. v. Allen L. R. I C. C. R. 367.

R. v. Fanning 17 Ir.C. L. R. 289.

R. v. JacksonENR Russ. & Ry. 487.

R. v. Middleton 42 L. J. Mag. Cas. 84.

R. v. JONESUNK 4 L. T. (N. S.) 154.

R. v. Mayers 12 Cox, C. C. 311.

R. v. Barrow L. R. I C. C. R. 156.

Rape — Consent obtained by fraud.

468 LAW REPORTS (IRELAND). [L. R. I. Appeal. the express words of the legislature. The section applies to all 1884. leases expiring within sixty years, without any distinction as to SEYMOUR the landlord's estate, whether he be owner in fee or representing V. QUIRES. the fee, or a middleman, and without any distinction as to the lessee's tenure or the reason or mode of its expiration, and it proÂvides that the lessee, if bona fide in occupation, shall be deemed to be tenant from year to year without saying who is to be the landÂlord. Assuming that, if the statute contained no provision attachÂing to the head landlord the tenants from year to year put in by a middleman whose title expires, there might be some difficulty in holding that by force of the 21st section the new tenancy from year to year could be attached to the superior landlord-although I am not to be taken as pronouncing such difficulty to be insuperaÂble-it seems to me that this difficulty is removed by the 15th secÂtion, which in my opinion applies to the new tenancy from year to year as if it had been previously existing, as has been more fully expounded by my LORD CHANCELLOR and LORD JUSTICE FITZ GIBBON, whose reasoning I shall not weaken by an attempt to repeat it. Judgment below affirmed. Solicitor for the Appellant : W. G. Toomey. Solicitors for the Respondent : Ford 4^ Son. Cr. Cas. Res. 1884. Nov. 27. Dee. 1. THE QUEEN v. DEE (1). Rape-Consent obtained by fraud. Consent of a married woman, if fraudulently obtained by personation of her husband, is no defence to an indictment for rape. Beg. v Barrow (L. R. 1 C. C. 156) not followed. CASE as follows, reserved by MAY, C. J., at the Summer Assizes for the county of Tipperary :- VOL. XIV.] Q. B., C. P., & El. DIVISIONS. 469 At the last Summer Assizes for the county of Tipperary, South Cr. Cas. Red. Riding, at Clonmel, on the 18th day of July, 1884, 1884. QUEEN Michael Dee was tried before me and a common jury on THE V. an indictment found against him for the rape of one Judith DEL Gorman. Judith Gorman was examined for the Crown, and deposed that she was the wife of one J. Gorman. That on the 9th of June last her husband went out to fish between 8 and 9 o'clock, p.m. She went upstairs to her bedroom, lay down on a bed without undressÂing, and fell asleep. That she felt someone throw himself on her -she thought it was her husband. When he came into the room she said to him, in his presence and hearing, " You came in very soon." He made no answer. He had connexion with her. That she put up her hand and felt the man's hair ; then knew it was not her husband, and ran downstairs, got down before the man, and then identified the prisoner as the man who had thus acted. She called out to William Stapylton to come to her assistance. She complained to Stapylton, and asked him to tell her husband ; but did not complain to her husband herself. All the evidence of this witness is to be treated as true. It was established, in my opinion, that she did not consent after she discovered that the man was not her husband. With respect to the circumstances which attended the transaction, I left certain issues to the jury, which, with their findings, are subÂjoined :- 1. Was Judith Gorman awake when the prisoner threw himÂself over her ? Answer of the jury.-She was. 2. Did she know that the man was not her husband before the connexion with her ? Answer.-She discovered he was not her husband sometime during the act. Or, 3. Was it after that connexion that she first discovered it was not her husband ? Answer.-During the act. 4. Did she consent to the connexion before it took place; if so, was it under the belief the man was her husband ? Answer.-She did consent until she discovered it was not her husband. It was pressed on one hand by counsel for the Crown, that on 470 LAW REPORTS (IRELAND): [L. li.1. Cr. Cas. Res. these findings the jury should be directed to find a verdict of 1884. guilty, and sentence should be passed on the prisoner. THE (1' On the contrary, Mr. D. Barton, counsel for the prisoner, con v. DEL tended that on these findings the prisoner should be acquitted. I directed the jury to find a verdict of guilty, but I did not pass any sentence on the prisoner, reserving the consideration of the facts of the case for this Court, which should either direct the acquittal of the prisoner, or affirm the conviction. The prisoner remains out on bail. .Dunbar P. Barton, for the prisoner : This conviction ought to be quashed. This is not a general verdict, but a verdict directed by the Judge on special findings ; therefore, all the facts necessary to enable the Court to give judgment must be found by the jury, for the Court cannot supply by intendment or implication any defect in the statement : see Archbold's Crim. Prac. (18th ed.), p. 171 ; 2 Hawk, c. 47, s. 9 ; '2 Cast. P. C., 708 and 784 ; 1 Chitt. Crim. Prac., 643. The answers to the second and fourth questions abstain from answering the gist of the questions, viz, the prosecutrix's state of mind at the point of time when the connexion commenced. The jury find that she consented until a certain stage, but there is no finding of fraud or of anything which can in law invalidate or avoid consent. Fraud cannot be inferred from the form of the question when it is not found by the jury in their answer. However, assuming for the sake of argument that the findings of the jury amount to the case of a man having carnal knowledge of a woman by a fraud which induces her to suppose it is her husband, it is not, in law, a rape. The most convenient course is to cite all the authorities in their historical order. The first case was R. v. Jackson (1), where it Tias held by a majority of the Judges that having carnal knowledge of a married woman under circumstances which induce her to suppose it is her husband does not amount to rape. This ease was followed by B. v. Saunders (2) and B. v. Williams (3). (1) Russ. & By. 487. (2) 8 C. & P. 265. (3) Ibid. 286. Vox. XIV.] Q. B., C. P., & EX. DIVISIONS. 471 In these two eases the prisoners were convicted of an assault under Cr. Cas. Res. the provisions of the 7 Wm. 4 and 1 Viet. c. 85, s. 11. The prin- 1884. ciple was pushed further in R. v. Staunton (1), where Coleridge, J., THE QUEEN laid down that an attempt by a medical man to get possession of the DE:;. person of the prosecutrix " by surprise," but not by force, was not an assault with intent to commit rape, but merely an assault. After these decisions three cases occur on which the prosecution here will rely, on account of a tendency in the judgments to extend the defiÂnition of rape : R. v. Camplin (2) ; R. v. Ryan (3) ; R. v. Case (4). With regard to these cases, it is sufficient to say that they are wholly distinguishable from the present case, and in spite of the dicta contained in them it was decided subsequently by five Judges, including Jervis, C. J in R. v. Clarke (5), that where the prisoner had carnal knowledge of a married woman under circumstances which induced her to believe he was her husband, and the jury found that when he entered the bed of the prosecutrix he intended to have connexion with her fraudulently, but not by force, and if detected to desist, the prisoner could not be convicted of rape. Subsequently, in R. v. Richard Fletcher (6), the definition of rape was further widened. In R. v. Charles Fletcher (7) it was held that upon an indictment for rape on an idiot girl of sixteen years of age, fully developed, and possessing animal instincts, there must be some evidence that the act was done without her consent, in order to support a conviction for rape. This case emphasises the importance attached by the Judges to a physical consent...